The British Medical Association, R (o the application of) v The General Medical Council & Anor

A legally qualified chair who is a full member of a mixed tribunal may give legal advice to the other members during private deliberations without automatically having to disclose that advice to the parties before the decision. The chair is not thereby acting as an external legal assessor. The tribunal must nevertheless comply with article 6 and common-law fairness. If a material legal point arises on which the parties have had no proper opportunity to comment, the advice must be given in their presence and they must be allowed to make submissions. A rule providing for the advice to be included in the decision, subject to that safeguard, is lawful.

The British Medical Association challenged paragraph 6(b) of the General Medical Council (Legal Assessors and Legally Qualified Persons) Rules Order of Council 2015. The rule governed advice given privately by a legally qualified chair of a Medical Practitioners Tribunal or Interim Orders Tribunal after deliberations had begun. The BMA argued that the rule breached article 6, common-law procedural fairness and rationality because parties might not comment on the advice before the decision.

The claim followed statutory changes permitting legally qualified chairs to replace legal assessors. The central issue was whether a legally qualified chair had the same procedural role as an external legal assessor when advising the other tribunal members.

1. Permission and disposition. Permission to proceed was granted, but the claim failed.
2. Applicable fairness principle. The common-law and Convention requirements were substantially similar. Fairness was fact-specific and focused on whether the procedure was sufficiently significant to the result to invalidate the decision. A tribunal cannot decide a case on a material proposition of law on which the parties have had no opportunity to comment.
3. Status of the legally qualified chair. A chair who is a full decision-making member of a mixed tribunal occupies a fundamentally different position from an external legal assessor. The chair may advise the other members on law during private deliberations as part of the collective judicial function. The reasoning in In re Chien Sing-Shou [1967] 1 WLR 1155 supported that conclusion. The dual-role analysis derived from Nwabueze v General Medical Council [2000] 1 WLR 1760 and Clark v Kelly [2003] UKPC D1 did not apply because those cases concerned advice from an outsider to the tribunal.
4. Construction of paragraph 6(b). The default position is that advice given privately after deliberations have begun may be included in the tribunal’s decision. If the chair considers it necessary to preserve fairness, the advice must instead be given in the presence of the parties in attendance, with an opportunity for comment before the decision. This would include a new, material and potentially controversial point of law on which no submissions had been made.
5. The rule was therefore compatible with article 6, common-law fairness and the statutory rule-making power. It did not create unlawful unequal procedural protection; it provided different fair procedures according to whether the tribunal had an external assessor or a legally qualified chair.

The judgment records that Lang J directed on 21 January 2016 that permission and the substantive judicial review be heard on an expedited rolled-up basis. The Administrative Court granted permission and dismissed the claim.